The truth about divorce in Virginia

When Ken Cuccinelli sponsored legislation in 2008 to repeal Virginia’s no-fault divorce law for couples with children, he said, “This law has everything to do with the breakdown of the family. The state says marriage is so unimportant that if you just separate for a few months, you can basically nullify the marriage.”

Even though five years have passed since the bill was introduced, it is worth considering what it reveals about Mr. Cuccinelli’s approach to public policy.

The predicate for his legislation — the idea that no-fault divorce in Virginia allows people to casually and quickly end their marriages — is a myth. The head of a social conservative group, the Family Foundation, wrote approvingly of then-Sen. Cuccinelli’s legislation, saying, “It is time that Virginians agree that the 30-year experiment with unilateral, no-fault divorce has failed.”

In almost 40 years in practice I have yet to encounter a client for whom ending a marriage has been anything other than a wrenching decision. Furthermore, Virginia already has one of the lowest rates of divorce in the nation.

It’s also highly misleading to suggest that Virginia’s no-fault grounds allow for a quick divorce; in what I call “pure” no-fault states, a party can fill out a form citing “irreconcilable differences,” and after a very brief waiting period, the divorce is finalized. In Virginia, couples with minor children — for whom Cuccinelli says he wants to make it harder to get divorced — have to be separated for a year before the divorce can be filed. And if the couple hasn’t agreed on custody, property, or support issues, it can take several months, or even a year or more, for the divorce to finally be concluded. Most divorcing couples in Virginia use the year’s separation period to resolve all the legal issues relating to the breakup, so that by the time the year has passed, there is nothing to contest.

The other illusory assumption underlying this bill is that children would benefit if there were no no-fault grounds. Trapping individuals in desperately unhappy marriages for a longer period of time would result in even more emotional damage to their children and increases the risk that a bad marriage becomes dangerous.

It doesn’t take a psychological study (although there are dozens) to tell us that divorce is hard on children. The more adversarial a divorce, and the longer it drags on, the likelier it is that the stress on the children will increase exponentially.

Finally, one cannot ignore what this proposal says about Cuccinelli’s attitude toward Virginia women. Let’s face it: even with huge cultural changes over the past several decades, the financially-disadvantaged or abused spouse is still almost always the wife, and thus the negative effects of his legislation would fall disproportionately on women. Regrettably, this bill falls right in line with Cuccinelli’s unwillingness to support increasing child support, the Violence Against Women Act and women’s health access. A recent Washington Post report on his ties to “Fathers’ Rights” groups may also help explain Cuccinelli’s legislative history.

Cuccinelli’s proposal to repeal no-fault divorce is a good example of what happens when public policy is based on ideology, ill-informed pseudo-social science, wishful thinking, or all of the above. Not only is its ostensible purpose of keeping married people together a fraud, but it would increase the emotional and financial cost on individuals seeking a divorce and, worst of all, place their children at risk of unnecessary additional trauma from the breakup of their parents’ marriages. What’s scary is that this legislation is also a perfect example of Cuccinelli’s simplistic, ideology-driven and shortsighted philosophy of governing.

Joseph A. Condo is a family law attorney and the former president of the Virginia State Bar.